my favorite part here is that the anti-same-sex-marriage crowd's argument for putting a stay on the judge's decision is that they didn't want gay people to get married during the appeals only to get their marriages annulled or something later on

i doubt the 9th circuit will overturn this - as i recall, they made the previous ruling that allowed gay marriages to happen in california. but the opposition will have to go through them before they can take it to the supremes...and then we will see if they have enough sense to see the tide is turning.

we will, of course, in the mean time, be hearing all the idiot arguments about how it's better for children, and how the whole history of civilization uphold the whole "one man, one women" thing - despite all the evidence presented in court to disprove the one, and all the history (including that of the mormon church) that disproves the other.

some filmmaker, i think, has put together a movie about all the shenanigans the mormon church pulled, in their backing this proposition -hope that gets good play as this is making its way through the courts._________________aka: neverscared!
a flux of vibrant matter

I plan to celebrate with unambiguous hostility and mocking towards the losing side. They represent little more than entrenched bigots attempting to strip rights from others for the sake of their theological intolerances.

What, then, are the justifications for California's decision in Proposition 8 to withdraw access to the institution of marriage for some of its citizens on the basis of their sexual orientation? The reasons I have heard are not very persuasive.
The explanation mentioned most often is tradition. But simply because something has always been done a certain way does not mean that it must always remain that way. Otherwise we would still have segregated schools and debtors' prisons. Gays and lesbians have always been among us, forming a part of our society, and they have lived as couples in our neighborhoods and communities. For a long time, they have experienced discrimination and even persecution; but we, as a society, are starting to become more tolerant, accepting, and understanding. California and many other states have allowed gays and lesbians to form domestic partnerships (or civil unions) with most of the rights of married heterosexuals. Thus, gay and lesbian individuals are now permitted to live together in state-sanctioned relationships. It therefore seems anomalous to cite "tradition" as a justification for withholding the status of marriage and thus to continue to label those relationships as less worthy, less sanctioned, or less legitimate.
The second argument I often hear is that traditional marriage furthers the state's interest in procreationand that opening marriage to same-sex couples would dilute, diminish, and devalue this goal. But that is plainly not the case. Preventing lesbians and gays from marrying does not cause more heterosexuals to marry and conceive more children. Likewise, allowing gays and lesbians to marry someone of the same sex will not discourage heterosexuals from marrying a person of the opposite sex. How, then, would allowing same-sex marriages reduce the number of children that heterosexual couples conceive?
This procreation argument cannot be taken seriously. We do not inquire whether heterosexual couples intend to bear children, or have the capacity to have children, before we allow them to marry. We permit marriage by the elderly, by prison inmates, and by persons who have no intention of having children. What's more, it is pernicious to think marriage should be limited to heterosexuals because of the state's desire to promote procreation. We would surely not accept as constitutional a ban on marriage if a state were to decide, as China has done, to discourage procreation.
Another argument, vaguer and even less persuasive, is that gay marriage somehow does harm to heterosexual marriage. I have yet to meet anyone who can explain to me what this means. In what way would allowing same-sex partners to marry diminish the marriages of heterosexual couples? Tellingly, when the judge in our case asked our opponent to identify the ways in which same-sex marriage would harm heterosexual marriage, to his credit he answered honestly: he could not think of any.
The simple fact is that there is no good reason why we should deny marriage to same-sex partners. On the other hand, there are many reasons why we should formally recognize these relationships and embrace the rights of gays and lesbians to marry and become full and equal members of our society.
No matter what you think of homosexuality, it is a fact that gays and lesbians are members of our families, clubs, and workplaces. They are our doctors, our teachers, our soldiers (whether we admit it or not), and our friends. They yearn for acceptance, stable relationships, and success in their lives, just like the rest of us.

This was a very straightforward example of a bad, bigoted law suffering the consequences of its truly unconstitutional and bigoted intent.

The defense of Prop 8 was pathetic tap-dancing around the true intent of the law's supporters, who tried as hard as they could to craft an artificial rationale in the hopes that it could have passed a secular test. The end result, a very poor and nonpersuasive set of arguments in its defense, an ultimately overwhelming case in its prosecution.

It, in fact, mirrors the resulting shortcomings of anti-miscegenation laws in many ways.

It will be remembered no more fondly than we recall our anti-miscegenation laws today.

Which all makes the expected torrent of judicial abuse all the more entertaining.

The defense of Prop 8 was pathetic tap-dancing around the true intent of the law's supporters, who tried as hard as they could to craft an artificial rationale in the hopes that it could have passed a secular test. The end result, a very poor and nonpersuasive set of arguments in its defense, an ultimately overwhelming case in its prosecution.

exactly. i think their extremely poor defense just demonstrated the poverty of their position - it basically came down to "well, we don't have to present any evidence, because everyone knows we are right". well, they aren't right, and even they couldn't come up with reasons why they were. there is no valid basis for this law, just bigotry and narrow-minded religious zealotry. and there is no reason to expect the state to back you up on a thing like that._________________aka: neverscared!
a flux of vibrant matter

Proponents for Proposition 8, which was heavily backed by the Mormon church and other religious and conservative groups, had offered a much more straightforward defense of the measure, saying that same-sex marriage damages traditional marriage as an institution. They also argued that marriage was essentially created to foster procreation, which same-sex unions could not, and was thus fundamental to the existence and survival of the human race.

holy fuck. they _actually_ believe that a) the human race is in danger of extinction due to lack of reproduction and 2) that somehow, allowing people who aren't going to procreate whether or not they are gay-married* is somehow the thing that is going to tilt the balance?

......man. how does someone that clueless get around in the world.

hm, all kinds of interesting bits.

Quote:

There were also signs that Judge Walkers personal life  several published reports have said he is gay -- might become an issue for those opposed to his ruling.

are conservatives really going to start screaming that a judge appointed by st. ronald of reagan is gay, and therefore a reagan appointee is untrustworthy?

*which, by the way, is completely untrue- i know quite a few lesbians who have given birth to children, thus doing their female duty despite being forbidden to wed the one they love. honestly, the number of things these people don't know about sex and reproduction....._________________aka: neverscared!
a flux of vibrant matter

I'm especially liking the court's assessment of witness credibility. I should have made popcorn for this.

*edit* for example, on page 49:

Quote:

During trial, Blankenhorn was presented with a study that posed an empirical question whether permitting marriage or civil unions for same-sex couples would lead to the manifestations Blankenhorn described as indicative of deinstitutionalization. After reviewing and analyzing available evidence, the study concludes that laws permitting same-sex marriage or civil unions have no adverse effect on marriage, divorce, and abortion rates, the percent of children born out of wedlock, or the percent of households with children under 18 headed by women. PX2898 (Laura Langbein & Mark A Yost, Jr, Same-Sex Marriage and Negative Externalities, 90 Soc Sci Q 2 (June 2009) at 305-306). Blankenhorn had not seen the study before trial and was thus unfamiliar with its methods and conclusions. Nevertheless, Blankenhorn dismissed the study and its results, reasoning that its authors think that [the conclusion is] so self-evident that anybody who has an opposing point of view is not a rational person. Tr 2918:19-21.

I want everyone to understand the facts of this case a little better. In fact, a lot better. I want you to read this entire thing. You will be surprised at some of these implications.

Like I skimmed this at first and got a glance at the larger picture. Then I read the whole thing, and a lot came together. You should do this too!

Quote:

On August 4, 2010, Federal Judge Vaughn R. Walker ruled that Californias Proposition 8, which prohibits California from recognizing same-sex marriage, is unconstitutional. The ruling was stayed pending appealwhich means that nothing will happen until a Federal Appeals court reviews it. As you might imagine, it will be appealed. The ruling itself is 138 pages long. Ill summarize.

The previous lawsuit challenged Proposition 8 on procedural grounds. My post on that case is here. The California Supreme Court disagreed with me. Since the California Supreme Court gets the final say on the California Constitution, it got the last word.

The new suit was brought by two same-sex couples on different grounds. And, since it was brought in Federal court, the California Supreme Court doesnt get a say at all. Something strange happened. Californias government was sued. The Attorney General said, essentially, I agree that this thing is unconstitutional. The other government groups said, Im not going to bother defending this. So did a number of other people, including ProtectMarriage.com - Yes on 8.

The people who brought the lawsuit (the Plaintiffs) claimed two things. First, they claimed that marriage is a fundamental right under the 14th Amendment of the U.S. Constitution. (There is some decent precedent on thisthe only question is whether the protected marriage is the one man/one woman kind of marriage). If the 14th Amendment protects same-sex marriage, the court reviews the case using strict scrutiny which Ill discuss below.
Second, they claimed that Prop. 8 discriminates against gay men and lesbians. Generally, the state is allowed to discriminatebut it has to have an adequate reason to discriminate.

For example, racial discrimination is still okay in prisons to prevent gang-violence along racial lines. Since race is whats called a suspect class, the government needs to have a really, really good reason to discriminate. (Narrowly tailored to a compelling government interest.)

Gender, on the other hand, is only a quasi-suspect class so it gets intermediate scrutiny. This means that the state needs to have a pretty good reason to discriminate. For example, we can have gender-segregated bathrooms but not race-segregated bathrooms. (The discrimination must further an important government interest in a way that is substantially related to that interest.)

Most things get rational basis review. We dont really have a history of discrimination of people who have brown hairso hair color falls into this everything else category. This means that the government can discriminate so long as it has an actual reason. (Rationally related to a legitimate government interest.) Rational basis scrutiny generally means that the government wins unless the governments goal is not a legitimate government end or its reasons are so laughably horrible that it is irrational.

There is a point to this digression. The question raised was whether sexual orientation is a suspect class, a quasi-suspect class, or a not really suspect class. The most recent Supreme Court that weighed in on it said that rational-basis scrutiny applied (but still overturned a Colorado Constitutional Amendment on the grounds that discriminating against gays was not, in itself, a legitimate government interest). The Plaintiffs claim that strict scrutiny should apply because sexual-orientation is a protected class. Since this is a fairly extreme claim, they also said that Prop. 8 is irrational or not based on a legitimate government purpose. (In this context irrational means that there are no rational reasonswhich is a very high bar. Similarly, legitimate government purpose can be very broad. It does not, however, include promoting a religious view point.) The 9th Circuitwhich is binding law in this caseseems to say that intermediate scrutiny should apply.

A trial happened. This means that the judge made findings of fact. He found that there was no evidence that Prop. 8 served a legitimate government interest. This is important because the case will be appealed. The appellate court will review the judges legal reasoning without giving any deference to what the judge decided. (De novo.) However, the factual findings will remain intact unless the trial judge did a terrible job. (Abuse of discretion.) When the trial court found the testimony of the anti-gay-marriage expert unreliable, it will keep that unreliable label through appeal. And when the judge says, the trial evidence provides no basis for something there will continue to be no evidence unless the appellate court finds an abuse of discretion.

The court found no basis for the claims that:

California has an interest in refusing to recognize marriage between two people because of their sex
California has an interest in differentiating between same-sex and opposite-sex unions
It also found that Proposition 8 could only be supported by a moral disapproval of gay people.

I should point out that Judge Walker knew the case would be appealed. His ruling essentially written to survive an appeal. For example, rather than disqualifying one of the anti-gay-marriage experts who lacked relevant degrees or peer-reviewed publications, he waited to decide whether the expert was qualified and determined that 1) the expert was not qualified, and 2) that even if the expert was qualified, he wasnt credible.

Because an appeal is virtually guaranteed, the most significant portion of this case is the findings of fact. As the legal maxim goes, bad facts make bad law. And Judge Walker laid out some very good facts. He found that Prop. 8 served no legitimate interest and that it was passed for the purposes of discrimination and advancing a private moral or religious agenda.

Judge Walker also makes these legal findings:

Same-sex marriage meets the historical requirements to be marriage rather than some new thing.
Domestic partnerships are not close enough to the same thing as marriage.
Prop. 8 does not serve a legitimate government interestlet alone a compelling government interest.
Prop. 8 discriminates on both sex and sexual orientation.
The highest level of scrutiny should be applied.
Even if we used the lowest level of scrutiny, Prop. 8 would fail because Prop. 8 satisfies no government interest.
A private moral view that same-sex couples are inferior to opposite-sex couples is not a proper basis for legislation
Proposition 8 was ruled unconstitutional.

So what happens next?

Nothing happens yet. The 9th Circuit Court of Appeals will review the case. After that, the U.S. Supreme Court will probably review it, regardless of what the 9th Circuit says. If the current ruling survives that, same-sex marriage will essentially become legal in every state. There was nothing to limit this holding to Prop. 8.

Will it survive appeal?

Maybe. The factual findings, as I mentioned, were pretty specific. And the opinion is quite persuasive. But if the Supreme Court doesnt feel like legalizing gay marriage everywhere, its not going to, regardless of how well the facts were laid out.

Some portion of the ruling will probably be narrowed. I would expect the court to choose a level of scrutiny other than strict scrutiny for sexual orientation discrimination.

This opinion has a very good chance of surviving appeal. On the other hand, the current Supreme Court has been handing down some very narrow rulings. This Prop. 8 opinion is pretty sweepingso the court might either reverse it or find a way to reach the same conclusion on much more narrow grounds.

Was this judicial activism?

If judicial activism means that a judge did something conservatives didnt like, then yes, it was judicial activism. Aside from that, this was a very well-reasoned opinion. Everybody got a fair trial. And one side won resoundingly.

Proposition 8 hinged on an operation staged by the Mormon church. The LDS staged a successful campaign and flooded the campaign with man-hours, leadership, operational expertise, campaigning, and money. They were the ones who, ultimately, made this proposition happen. There is sublime, deserving irony in that the mormon church is waking up this morning to the discovery that the sum of all its efforts, entanglements, operations, and funding towards the cause of preventing gay marriage may very well lead to gay marriage becoming legal in all states much, much faster than it would have otherwise.

Joined: 09 Jul 2006Posts: 9718Location: I have to be somewhere? ::runs around frantically::

Posted: Wed Aug 04, 2010 7:37 pm Post subject:

I'm throwing a party!

What makes me sad is when I scroll through my friend list, not enough of them would respond favorably to me going "EEEEEEEE PROP 8 IS OVERTURNED!!!!!"_________________Before God created Las he pondered on all the aspects a woman might have, he considered which ones would look good super-inflated and which ones to leave alone.
After much deliberation he gave her a giant comfort zone. - Michael

Proponents for Proposition 8, which was heavily backed by the Mormon church and other religious and conservative groups, had offered a much more straightforward defense of the measure, saying that same-sex marriage damages traditional marriage as an institution. They also argued that marriage was essentially created to foster procreation, which same-sex unions could not, and was thus fundamental to the existence and survival of the human race.

holy fuck. they _actually_ believe that a) the human race is in danger of extinction due to lack of reproduction and 2) that somehow, allowing people who aren't going to procreate whether or not they are gay-married* is somehow the thing that is going to tilt the balance?

......man. how does someone that clueless get around in the world.

That it does, dear mouse, that it does.

If you read "was thus fundamental to the existence and survival of our faith" you'll be closer to what many, many people believe everywhere in the world. Time and again, I've seen this. I can recall numerous newspieces where some drama, assault, murder etc... happened because some git felt threatened by the sudden appearance of another lifestyle or religion.

Without making any judgment on your country domestic law, the point would better be why those morons feels they must act this way and how best counter or prevent it before some ugly accident happens again (cf. abortion practioner murders). There is a huge groundwork of explaination/teaching to do._________________æçæ°£å¢è¹è£æ»¿äºé±é­